Tag Archives: U.S. Supreme Court

As the Supreme Court ends another Term the attention continues to be on the Justices themselves and their voting patterns. This past Term featured a higher than average number of unanimous opinions. But as Adam Liptak from the Times has noted, these opinions seemed to mask disagreements among the Justices. Why then the unanimity? One hypothesis is that the Justices are trying to shore up the institutional integrity of the Court having become more sensitive to or cognizant of the charge that the Court with its numerous sharply divided opinions along idealogical lines is a nakedly political institution. But does this sort of unanimity (some might call it unanimity for the sake of unanimity), if that is what it appears to be, really enhance the legitimacy of the Court in the long term?

One can argue that it does not. In its most benign form, the Court is simply “kicking the can down the road” in its refusal or inability to grapple with sensitive legal issues, even if doing so would lay bare the ideological fault lines within the institution. Another more cynical interpretation is that the “conservatives” on the Court, having made institutional integrity the central focus of the Court’s agenda, are challenging their more liberal colleagues to be the ones to blink first. “Dissent if you dare” may now be a common refrain by Chief Justice Roberts, the supposed architect of the Court’s recent approach toward greater unanimity. And the conservatives can afford to wait since they, more so than their liberal colleagues, are the ones who have prevailed in cases which have presented the most contentious issues of the day. Why fix it if it ain’t broke? or so the saying goes.

The downside of all this is that Court deprives the country of the guidance it needs to govern its affairs. Fostering unanimity means declining more cases or accepting more “easy” cases — ones that perhaps don’t carry the kind of political baggage that cases about gay marriage or contraception do — or delaying to another day a ruling on a broader but more contentious issue in a case that the Court has accepted in favor of a more narrow but less contentious point. There are sound reasons for these approaches, the details for which are beyond the scope of this post. But institutional legitimacy is not one of them.

It is foolish to think that fractured decisions deprive the Court of credibility. The cases that reach and are accepted by the Court are often ones that have already split the lower courts. Add to this the fact that judges by nature have their own predispositions and prejudices, it should come of no surprise that cases often end up being decided by a bare majority. And this is as it should be since fractured opinions also foster healthy debates among the justices themselves and in the public at large on the correctness of one view over another.

The Court’s legitimacy comes not from the actions of the Court itself but from the views and beliefs of the people whose rights and duties are the subject of the Court’s decisions. So long as the Court stays true to its duty of interpreting and when necessary making law that best reflects its view of what the Constitution requires, then its legitimacy as a governmental entity is sound. This is so even if one or more members of the public disagree with how the Court interprets the Constitution.

What is more important from the standpoint of the Court’s legitimacy is the public’s understanding and acceptance of the decisions that are actually issued. This necessarily takes time and it requires the involvement (in the form of outreach, education and so forth) of individuals and groups who often have no relation to the Court. But none of this is possible if the Court makes an effort to decide fewer cases or skirts an issue in a case just because it is one whose resolution would divide the Justices.

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The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake. States will now be able to gerrymander at will without first subjecting their plans to federal oversight. Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional. And affirmative action is still a laudable if not legal concept, although that too may change soon.

That the legal landscape has again shifted should come as no surprise. Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court. That these changes might anger some and please others is nothing new either. Controversy, after all, is something that often propels a case to the Supreme Court and leads to its review by the justices, which is almost always at their discretion. Not that debate should not be had on the cases that make it to the court. But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of the legal briefs on which the justices rely to make their decisions. This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law. This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional. But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.

The trend we see of the Supreme Court wading into almost every area of law is a troubling one. It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology. And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned. As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy. Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out. Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all. Not that we should get into the business of electing judges. But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.

Of course, if a law must be struck down, that is the job of the courts. No one should be made to suffer under an unjust law. If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack. But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”. The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.

The Supreme Court will determine this Friday whether to grant certiorari in the Chaidez matter, the case in which the Seventh Circuit held that Padilla does not apply retroactively. Presumably there is already a pool memo floating around the Court in which a clerk has made a recommendation as to whether cert. should be granted. The Government has already made up its mind, however, having informed the Court that it agrees with the Petitioner (Chaidez) that cert. should be granted to resolve the Padilla retroactivity issue.

Aside from Chaidez, it will be interesting to see how many cert. petitions now pending before the Court will be “held” by the Court for “GVR” (grant, vacate and remand) treatment in light of its decision in Chaidez — assuming, of course, the Court does grant cert. on Friday. It will also be interesting to see if Justice Kagan will have to recuse herself because, perhaps, she might have represented the Government back when the Padilla case was before the Court (the Government filed an amicus brief in Padilla urging the Court to affirm the Supreme Court of Kentucky; yet another example of the current administration’s cramped and antagonistic view of immigrants’ rights ). Should Justice Kagan have to recuse herself, there is a very real possibility that the Court may deadlock on the retroactivity issue, in which case the Seventh Circuit’s decision would be affirmed. Not a good scenario for immigrants or their counsel. The unlikely savior in such a situation may be the Chief Justice, however. I say this only because the Chief Justice has indicated recently a discomfort with the Court’s rightward trajectory, not to mention the fact that he joined the majority in Vartelas, the Court’s recent decision which, in effect, limited the applicability of the draconian anti-immigrant legislation that is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.

For those who are interested in reading the cert. materials in Chaidez, they are available here via the SCOTUS blog website.

Thanks to those who visited Invisible Man in 2011. I hope this blog has been of use to some. The issue of Padila retroactivity, to which I have devoted a lot of my blogging, is still percolating throughout the courts and remains very much a hot topic among criminal defense and immigration law attorneys, especially those who toil in the trenches of postconviction litigation. For 2012, I predict that the U.S. Supreme Court will finally step in to decide the issue of Padilla retroactivity, with a decision due in late 2012 or early 2013. I believe the Court will find Padilla retroactively applicable (how could I predict otherwise?!) and Justice Kennedy will write the decision for the majority, although Justice Alito will, in one way or another, be key in shaping the contours of the Court’s ruling on Padilla retroactivity.

WordPress.com has provided me with a year end report for 2011, which I have posted below for everyone’s reference.

Thank you all again for taking time out to visit the Invisible Man. I look forward to another year of blogging on Padilla and other issues.

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The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 9,400 times in 2011. If it were a concert at Sydney Opera House, it would take about 3 sold-out performances for that many people to see it.

Followers of Padilla retroactivity might be disappointed to hear that the U.S. Supreme Court denied cert. today in Morris v. Virginia, the first case to present the question of whether Padilla qualified for retroactive application. The decision denying cert. can be found on page 15 of the Court’s order list from 10/3/2011.

This ruling should come as no surprise, however. The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.

As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue. The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida. I will post the briefs and provide updates as they become available.

UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs. The Government’s brief can be found here, the appellant’s/defendant’s here.

I recently finished reading the biography of Justice William Brennan, considered one of the most influential jurists in United States Supreme Court history. Brennan is perhaps best known as the liberal bulwark of the Court in a tenure that spanned the reign of three Chief Justices, Warren, Burger, and Rehnquist.

It is no surprise that Brennan’s liberal leanings, exhibited most prominently in his rulings from the Court, made Brennan a much-reviled figure among conservatives, who disliked him as much for his views as for his success in turning those views into law. These critics complained that Brennan acted beyond his authority as a judge whose role it is to simply apply the law, not make it. Instead, the criticism goes, Brennan would act as kind of a super-legislature, grafting his personal views of morality and human dignity into his judicial opinions.

Whether these accusations have any basis in fact is perhaps open to dispute. To be sure, Brennan cannot be considered a judge whose ultimate fidelity lies in the words of a statute instead of in his convictions of right and wrong. With a properly framed question, Brennan, I am sure, would have admitted as much if he were still alive. Indeed, a popular story of Brennan’s tenure as Supreme Court justice is that he would invariably ask his clerks who have just come on board for a new term what the most important rule is when it comes to judging on the Supreme Court. After fielding incorrect answers like “due process” or “equal protection” he would raise up five fingers and say that the most important rule in the Court is to attain votes from five justices in a case, which constitutes a majority on the Court. Activist? Perhaps. Result-driven? Maybe so.

But focusing on such mechanisms of judicial rulemaking do nothing to advance the debate of what we consider to be a model society that is governed by the rule of law rather than one that is run by the whim of the individual. As Brennan’s “rule of five” vignette demonstrates, judging necessarily involves the employment of policy preferences; after all, if judging was as simple and straightforward as applying the law to the facts, as is the myth most prominently trumpeted perhaps by Chief Justice Roberts (his judge as umpire calling balls and strikes analogy comes to mind), why aren’t all cases before the Court decided on a unanimous basis? And this is true whether the judge is considering the case of a derelict landlord who fails to fix a tenant’s leaky faucet or one involving more weighty constitutional issues like whether the government can prohibit flag-burning consistent with the First Amendment (it cannot). There are exceptions to this phenomenon, of course, but the simple truth is that judges are most of the time lawmakers, only in different garb.

I would argue that the sooner we recognize and accept this, the sooner we can move on to more substantive discussions as to which judge-made laws, and the principles which underlie them, are more consistent with what we view as a just and equal society. Fortunately, Brennan got past this a long time ago and, as a consequence, achieved unparalleled success in changing the direction of this country through his rulings, one that sought to recognize and protect the dignity of the individual above all else.

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The National Immigration Project of the National Lawyer’s Guild has recently issued a Practice Advisory on the retroactive applicability of Padilla v. Kentucky. It concludes that Padilla should be applied retroactively by the lower courts because it does NOT create a new rule of criminal constitutional law. The practice advisory can be downloaded here.

Also, a recent decision from Judge Seybert in the Eastern District of New York touches upon but does not decide the issue of retroactive applicability of Padilla — she assumes for the sake of argument that it does apply retroactively and then goes on to reject his Padilla claim on the merits. The case is United States v. Obonaga (E.D.N.Y. June 24, 2010) and can be accessed via Google Scholar here.